Mobley v. Slonaker ( 1874 )

Downey, J.

It is assigned as error in this case that the complaint does not state facts sufficient to constitute a cause of action. Counsel for appellant cites authorities to show that the question as to the sufficiency of the facts stated in the complaint to constitute a cause of action may be raised in this court, although there was no demurrer to the complaint in the court below.

Counsel is clearly right in this position. The objection to the complaint mainly relied upon, however, in the brief of counsel is, that there is another person who should have been united with Slonaker, the appellee, in bringing the action. This question does not go to the sufficiency of the facts stated in the complaint. It is a defect of parties, and is an objection which is waived unless taken by demurrer or answer. 2 G. & H. 81, sec. 54.

We have examined the complaint, and think that, as the action originated before a justice of the peace, where less particularity is necessary in pleading than in the circuit court, it is sufficient.

The judgment is affirmed, with ten per cent, damages and costs.